Search Warrants

Courts also commonly issue search warrants, which direct police officers to conduct a search of certain premises for specific things. Like arrest warrants, search warrants are issued by judges based on information received from law enforcement officials and probable cause is required.

The requirements for search warrants are stringent. The U.S. Supreme Court has said that a citizen's constitutional privilege against illegal searches is "a firm line" at the entrance to your home. However, because the Constitution protects people, not places or things, search warrants are not required where the person has no expectation of privacy.

Abandoned buildings and vehicles can also be searched without a warrant because the owner is no longer using them and has no expectation of privacy. For example, the renter who moves out of his apartment in the middle of the month, although the month is paid up, no longer has a legitimate expectation of privacy. The apartment is considered to be abandoned and it can be searched without a warrant. Additionally, the driver being pursued by police who throws her purse out the window cannot later complain the police went through the purse without a warrant. She threw it away and, therefore, could not expect its contents to remain private.

What is an "informant"?

An informant is a person working with the police to provide information concerning criminal activities. The informant is not a law enforcement agent. The informant provides the "information" that supports the probable cause element for obtaining a warrant.

I have gone to the police and reported some suspicious activity in my neighborhood. Why is the information I provided not good enough for them to obtain a search warrant?

Although you are acting as an "informant," the police may view your tip as a rumor since you are a first-time informant. Without more information, the officers do not have probable cause to obtain a warrant. If you have photographs or video of a criminal activity, turn it over to the police, as this may provide them with probable cause to obtain a warrant. Be aware that this means you will likely be called as a witness in any criminal trial that may occur as a result of your tip.

I am currently on probation. Can I refuse to let my probation officer into my house without a warrant?

No. Your probation officer does not need a warrant to enter your home to search for probation violations, such as drug possession.

Typically, one of the conditions of probation requires you to let a parole or probation officer search your person, residence, belongings and vehicle for drugs if the officer requests. If you are unwilling to accept the condition, you can choose to serve the suspended jail time.

Caution: If you refuse a probation officer's request to search, you have violated the conditions of your probation. Probation can be revoked, and you will finish serving your sentence in jail.

Can the police search my home without a warrant?

Rarely. The U.S. Constitution requires a search warrant for residences unless a valid exception to the warrant requirement exists, such as "exigent circumstances." For example, a person running from the police can be followed into his home. If the police believe a person in the home is in immediate danger, especially children, the police are allowed to enter and search your home without a search warrant.

The police searched my hotel room without a warrant. Is this illegal?

Usually. A person checking in at a hotel for the night has a reasonable expectation of privacy and a search warrant is required, except in exigent circumstances. A hotel becomes the traveler's "transitory home" and Fourth Amendment protections apply.

TIP: Once you have checked out of the hotel, your "transitory home" is abandoned and your room may be searched without a warrant.

The police have accused me of selling stolen goods out of my bookstore and have searched the entire store without a warrant. Why is this legal?

Search warrants are not required for purely commercial business premises or property. You do not have an expectation of privacy if, at the time of the search, you opened up the property to the general public.

Sidebar: Doing business out of a home makes that home a commercial business. Thus, if someone is selling drugs out of their home and invites a police officer (acting as a decoy) into the house to transact business, the officer can conduct a search without a warrant.

The police, without a warrant, searched my garage, where my brother sometimes repairs cars for people. Is this legal?

Yes. If your brother is operating a public business out of a building on your property, you cannot now say that you had an "expectation of privacy" in those premises. Any items the police find while searching the garage were legally obtained.

Although garages and other outbuildings on your property generally do enjoy an expectation of privacy and cannot be searched without a warrant, you can change the nature of the buildings by opening them to the public. For example, by setting up a flower and plant business in your greenhouse where you sell to the public, you can no longer claim an expectation of privacy in the greenhouse.

Sidebar: Courts do not look at the type of building that was searched but, rather, its nature. "Type" refers to what the building is labeled or called, i.e., garage, barn, stable or greenhouse; "nature" refers to whether its actual use is public or private.

I have a private office at my place of employment. Can it be searched without a warrant?

Probably not. Again, where there is a reasonable expectation of privacy, searches may not be conducted without a warrant.

Courts look at warrantless workplace searches on a case-by-case basis. In order to determine whether there is a reasonable expectation of privacy in an office located on premises accessed by the public, courts look at whether:

• the occupant has the right to exclude others from the space;
• precautions were taken to maintain privacy, such as doors and locks; and
• the occupant has a possessory interest in the space, such as the storage of personal items, documents or records.

Some examples of workspaces that can be searched without a warrant include offices or workspaces open to public view including those:

• located in an open space with the work area hidden by a partition or divider;
• located in cubicles where the desktop is blocked from public view;
• that are shared with another employee; and
• in public areas.

The employees in these offices could not reasonably expect privacy, since what they are doing in the workspace can be seen, at least partially, and heard by others. For example, the telephone calls are not private in these situations.

By posting signs on their "campuses" warning that all persons entering are subject to search, employers have automatically reduced their employees' expectations of privacy in their offices.

Some examples of workspaces that cannot be searched without a warrant include private offices:

• with doors that can be locked and the employee has the only key; and
• doors that require a personal password to enter.

If an employer provides a safe or locking file cabinet for the employee's use only, it cannot be searched without a warrant.

Can the police search my garbage without a warrant?

Yes. Once you have placed your garbage or trash in a location that is accessible to the public, you no longer have an expectation of privacy. Searching and seizing the trash is legal.

In some cases, state constitutions have an expanded right against illegal searches that requires a warrant for a search of trash placed on the curb in opaque bags or containers that are secured. For example, the Vermont state constitution declares that its citizens and their "houses, papers and possessions" may not be searched and seized illegally or without a warrant.

I saw my neighbor place marijuana plants in our apartment dumpster. If I remove and take them to the police, have I done anything illegal?

No. Once placed in the communal dumpster, your neighbor's trash can be searched by anyone, including the police, and what is found there can be turned over to law enforcement officials. Furthermore, the police can validly obtain a search warrant based on your removal of the plants.

Why are the police conducting a search on my driveway without a search warrant?

A search warrant is not required in all of the areas around your home. If the area around your home, known as curtilage, is open to the public and uninvited guests, a search warrant is not necessary for the police to enter. Public curtilage includes walkways, driveways and other direct routes that lead to your residence and are impliedly open to the public.

I own several acres that are fenced and posted with "no trespassing" signs. Doesn't this prevent the police from searching the area surrounding my house without a warrant?

The U.S. Constitution does not require a warrant for searches of open land and spaces. This is known as the "open-fields" rule. The area need not be a "field" nor "open" in order for a court to find that an "open field" exists. An "open field" is simply an area that is unoccupied, undeveloped or abandoned where no expectation of privacy exists.

Furthermore, you cannot necessarily expand the protections against a search of your property by fencing it in or posting a "no trespassing" sign. Evidence of open gates, regular entry by meter readers and others may be used to show you did not have an expectation of privacy outside your home. Walkways, driveways and other direct routes that lead to your residence are open to a search.

Sidebar: However, some state constitutions may expand your guarantee against an illegal search to a larger area outside your home.

My home is set back from the street with a long driveway, gates and guard dogs. Can the police still enter without a search warrant?

Probably not. The locked gate and dogs indicate that the police have to find a way other than a direct route to obtain access to your property. Since the area around your home, or curtilage, does not allow uninvited guests or members of the public to enter, it cannot be searched without a warrant.

Sidebar: Search or arrest warrants obtained because of information gained or observations made by entering into curtilage not impliedly public are invalid. Because an intrusion occurred in order to gain the information for the warrant, the information is considered illegally obtained by courts.

Is a search warrant required to search my child, her locker, backpack or other possessions while she is at school?

Although it depends on the circumstances of each case, you should probably assume that your child could not be legally searched without issuance of a warrant. The courts have held that a school's need to effectively deal with threats of violence, drugs, weapons and other potential crimes on campus must be balanced against your daughter's guarantee against illegal searches and seizures. For instance, her purse or backpack cannot be searched without a warrant if a teacher suspects she was merely smoking and may have cigarettes in it. She has an "expectation of privacy" in those items.

However, sniffer dogs brought into schools to sniff out illegal substances have been held by courts to be a reasonable form of search since smells, which are "out in the open," are the same as items in public view.

My child is at college and was arrested by campus police when drugs were recovered in her dorm room after the resident advisor found them and reported her. Is this an illegal search?

No. Private citizens are not required to obtain search warrants, and what they discover and report to the police may be the basis for a valid arrest. Since the resident advisor is not a law enforcement official, his search was constitutional.

Sidebar: If the resident advisor, or any other student, made the search upon the suggestion and with the guidance of police, the search is considered a government search and a warrant must be obtained. The person searching is considered to have the status and authority of a police officer in such a case.

Can my vehicle be searched without a warrant?

Yes. Under the "automobile exception," law enforcement officers may search your vehicle if they believe there is evidence of a crime within it. A warrant is not required for a search because a vehicle is mobile and can be moved and transported easily. Of course, the officer must have a reasonable belief based on facts that he could articulate to explain the search. For example, an officer asks the driver to get out of his truck and frisks him to make sure he does not have a weapon. The officer finds an ammunition clip in the driver's pocket. At that point, the truck may be lawfully searched because the officer could reasonably believe a gun was in the vehicle.

Sidebar: If you have been pulled over, reasonable belief exists for your vehicle to be searched once you have been arrested.

The automobile exception does not apply, and, in fact, your consent is invalid, if your vehicle was stopped illegally. For example, if you were pulled over because the officer believed you ran a red light, although video records later showed that you did not, a subsequent search is unconstitutional. Your consent is only valid at an illegal stop if intervening circumstances arise between the stop and the search evidencing some criminal activity.

My teenager was pulled over and consented to a search of our family car. He does not own the car; he did not know he could refuse a search; and the officer never told him of his right to refuse. Is the search illegal?

No. The police officer had no duty to inform your child, or anyone else, of his right to refuse consent to the search. Additionally, your son had the authority to consent to the search although he was not the owner of the vehicle, since he was driving it with your permission.

TIP: Persons driving your car with permission can give consent to a search of the vehicle. If you are loaning your vehicle to another person to drive, remove any items that you consider private.

Is a motor home subject to the automobile exception for searches?

No. A warrant is required to search a motor home because there is a higher expectation of privacy in it as compared to a passenger vehicle. The motor home generally has shades, curtains, beds and baths just like a residence where you expect privacy. Because you can actually live in a motor home for an extended period of time, it is more than just a mode of transportation and the automobile exception does not apply.

Can my boat be searched without a warrant?

Probably. States generally have statutes concerning boat and water safety that allow for official inspections. Furthermore, boarding a boat is usually a minimal "invasion," unlike the search of your home.